EXHIBIT 4.3.6
AMENDMENT NO.5
TO
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
AMENDMENT NO.5 to the Amended and Restated Registration Rights Agreement,
dated as of June 1, 1999 (the "Amendment"), among United Surgical Partners
International, Inc., a Delaware corporation (the "Company"), and the several
other parties named at the foot hereof, amending the Amended and Restated
Registration Rights Agreement dated as of April 30, 1998 among the Company and
the several signatories thereto (the "Registration Rights Agreement"). All
capitalized terms used and not defined herein shall have the meaning set forth
in the Contribution and Purchase Agreement dated as of May 11, 1999 (the
"Contribution Agreement") among USP North Texas, Inc., Baylor Health Services,
Texas Health Ventures Group L.L.C. and THVG/HealthFirst L.L.C.
On the date hereof, USP, Baylor, THVGl and THVG2 are consummating the
transactions contemplated by the Contribution Agreement pursuant to which the
Company has agreed to issue to Baylor a Convertible Subordinated Promissory Note
(the "Note") convertible into shares of the Company's Class A Common Stock, $.01
par value ("Class A Common Stock").
It is a condition to the closing of the transactions contemplated by the
Contribution Agreement that the Company and the parties hereto execute this
Amendment.
Pursuant to Section 13(d) of the Registration Rights Agreement, the
Registration Rights Agreement is hereby amended as follows:
1. Baylor is hereby made a party to the Registration Rights Agreement with
the same rights (including the right to receive notices under Sections 4, 5 and
6 of the Registration Rights Agreement) and obligations as a holder of
"Restricted Stock" (with respect to the shares of Class A Common Stock into
which the Note is convertible) as set forth in the Registration Rights
Agreement. Baylor is hereby deemed to be a holder of "Restricted Stock" with all
the rights and, with respect to the shares of Class A Common Stock into which
the Note is convertible, obligations of such a holder as set forth in the
Registration Rights Agreement. Baylor, or its assignee, shall continue to be
deemed such a holder of Restricted Stock for so long as Baylor, or its assignee,
holds the Note. Upon any conversion of the Note, the converted shares held by
Baylor, or its assignee, will be "Restricted Stock" and Baylor, or its assignee,
will be a holder of "Restricted Stock" with respect to such converted shares and
will have all the rights and obligations of a holder of "Restricted Stock."
2. Section 13(d) of the Registration Rights Agreement is hereby amended
and restated in its entirety as follows:
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"(d) This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof and may not be modified or amended
except in writing signed by the Company and the holders of not less than
two thirds of the Restricted Stock and Investor Shares then outstanding;
PROVIDED that no such modification or amendment shall deprive any holder
of Restricted Stock (including Baylor or its assignee) or Investor Shares
of any material right under this Agreement without such holder's consent.
The Company will not grant any registration rights to any other person
without the written consent of the holders of at least two-thirds of the
Restricted Stock and Investor Shares then outstanding if such rights could
reasonably be expected to conflict with, or be on a parity with, the
rights of holders of Restricted Stock or Investor Shares granted under
this Agreement; PROVIDED, HOWEVER, that notwithstanding the foregoing, any
amendment solely to grant registration rights to additional holders of the
capital stock of the Company may be effected in a writing executed solely
by the Company and such additional holders if such registration rights are
no more favorable than the registration rights granted to any holder of
Investor Shares. Any amendment to this Agreement to grant such
registration rights to such additional holders of the capital stock of the
Company shall not be deemed to be an amendment that adversely affects the
rights of any holder hereunder."
3. The first paragraph of Section 3 of the Registration Rights Agreement
is hereby amended and restated in its entirety as follows:
"3. NOTICE OF PROPOSED TRANSFER. Prior to any proposed transfer of any
Restricted Stock or Investor Shares, as the case may be, (other than under
the circumstances described in Section 4, 5 or 6 hereof), the holder
thereof shall give written notice to the Company of its intention to
effect such transfer. Each such notice shall describe the manner of the
proposed transfer and, if requested by the Company, shall be accompanied
by an opinion of counsel reasonably satisfactory to the Company (it being
agreed that Nossaman, Guthner, Xxxx & Xxxxxxx, LLP shall be satisfactory)
to the effect that the proposed transfer of the Restricted Stock or
Investor Shares, as the case may be, may be effected without registration
under the Securities Act, whereupon the holder of such Restricted Stock or
Investor Shares, as the case may be, shall be entitled to transfer such
Restricted Stock or Investor Shares, as the case may be, in accordance
with the terms of its notice; PROVIDED, HOWEVER, that no such opinion or
other documentation shall be required if such notice shall cover a
distribution by Welsh, Carson, Xxxxxxxx & Xxxxx VII, L.P. ("WCAS VII") or
WCAS Healthcare Partners, L.P. to their respective partners; and FURTHER
PROVIDED, that no such opinion or documentation shall be required if such
notice shall cover a transfer by Baylor Health Services ("Baylor") to an
entity to which Baylor may transfer its membership interest in Texas
Health
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Ventures Group L.L.C. ("THVGl") under Section 4.1(a) of the Second Amended
and Restated Regulations of THVGl dated as of June 1,1999, so long as
Baylor delivers other evidence, reasonably acceptable to the Company, to
the effect that the proposed transfer may be effected without registration
under the Securities Act. Each certificate for Restricted Stock or
Investor Shares, as the case may be, transferred as above provided shall
bear the legend set forth in Section 2, unless (i) such transfer is in
accordance with the provisions of Rule 144 (or any other rule permitting
public sale without registration under the Securities Act) or (ii) the
opinion of counsel referred to above is to the further effect that the
transferee and any subsequent transferee (other than an affiliate of the
Company) would be entitled to transfer such securities in a public sale
without registration under the Securities Act."
4. Schedule I to the Registration Rights Agreement is hereby amended by
adding the following Baylor notice information under the heading of "Restricted
Stockholders":
Baylor Health Services
0000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: M. Xxxxxxx Xxxxxx, Chief Operating Officer
Fax Number: (000) 000-0000
5. The Registration Rights Agreement, as amended by this Amendment, is
hereby in all respects confirmed.
6. This Amendment shall be governed by and construed in accordance with
the laws of the State of Delaware.
7. This Amendment may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
[SIGNATURE PAGES FOLLOW]
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UNITED SURGICAL PARTNERS
INTERNATIONAL, INC.
By /s/ XXX X. XXXXXXX
Xxx X. Xxxxxxx
Executive Vice President
BAYLOR HEALTH SERVICES
By /s/ M. XXXXXXX XXXXXX
Name M. Xxxxxxx Xxxxxx
Title EVP
WELSH, CARSON, XXXXXXXX & XXXXX
VII, L.P.
By: WCAS VII Partners L.P.
General Partner
By: /s/ XXXXX XXXXXXXX
Xxxxx XxxXxxxx
General Partner
WCAS HEALTHCARE PARTNERS, L.P.
By: WCAS HC Partners
General Partner
By: /s/ XXXXX XXXXXXXX
Xxxxx XxxXxxxx
Attorney-in-Fact
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Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxx
Xxxxxx X. Xxxx
Xxxxxx X. XxXxxxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxxxx X. xxXxxxxx
Xxxx X. Xxxxxxx
By: /s/ XXXXX XXXXXXXX
Xxxxx XxxXxxxx
Attorney-in-Fact
/s/ XXXXX XXXXXXXX
Xxxxx XxxXxxxx
/s/ XXXXXXX X. XXXXXX
Xxxxxxx X. Xxxxxx
/s/ D. XXXXX XXXXXXX
D. Xxxxx Xxxxxxx
/s/ XXXXXX XXXXXX
Xxxxxx Xxxxxx
HEALTH CARE CAPITAL PARTNERS, L.P.
By: Xxxxxx Xxxxxxx Xxxxxxxx & Co., LLC
General Partner
By /s/ XXXXXX X. XXXXXX
Name Xxxxxx X. Xxxxxx
Title General Partner
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HEALTH CARE EXECUTIVE PARTNERS, L.P.
By: Xxxxxx Xxxxxxx Xxxxxxxx & Co., LLC
General Partner
By /s/ XXXXXX X. XXXXXX
Name Xxxxxx X. Xxxxxx
Title General Partner
MANAGEMENT PURCHASERS
/s/ XXXXXX XXXXX
Xxxxxx Xxxxx
/s/ XXXXXXX XXXXXX
Xxxxxxx Xxxxxx
/s/ XXX XXXXXXX
Xxx Xxxxxxx
/s/ XXXXXXX XXXXXXXX
Xxxxxxx Xxxxxxxx
/s/ XXXXXX XXXXX
Xxxxxx Xxxxx
/s/ XXXXXXX XXXXX
Xxxxxxx Xxxxx
/s/ XXXXX X. XXXXXXXX
Xxxxx XxXxxxxx FBO Xxxxx XxXxxxxx
/s/ XXXXX XXXXXX
Xxxxx Xxxxxx
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